Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into politics, military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.

09 September 2016

No Meatless Link Sausages

Left unsaid in this article is the second-order aspect of responding to genius: Not just how to identify it, but how to respond once it's identified. And there's a disturbing corollary, too: If the "10,000 hours of practice" meme is wrong (and it surely is — every politician running for office today has more than 10,000 hours of practice at lying, and yet they're not fooling anyone but instead relying on their opponents being perceived as the "greater evil"), what does that say about those to whom we've delegated the coaching/teaching role in that practice?

Lots of copyright-related legal action across The Pond lately, much of it of direct concern to US authors.

Most of the major pirate e-book repositories are now (purportedly) based in Europe, so the standard for when a link site contributes to infringement matters. In GS Media BV v. Sanoma Media BV, No. C–160/15 (08 Sep 2016), the European Court of Justice opined that holding a link site liable requires both that the link site obtain profit from the fact of hosting the links (and not from incidental activity or direct association with other profit-making activities; needless to say, US law is slightly different, requiring only that the infringing activity be a significant draw for general profitability) and that the link site be actually aware of the infringement and infringing material (related, but slightly different, factual inquiries). This is important to US authors and makes sending DMCA notices — even to Europe — more urgent: That's how one gives a link site, or whomever else, actual knowledge of both the infringement and the infringing material, so that the next author to come along isn't just shooting ostriches.

And then there's the parody problem. US courts have largely gotten it wrong by overly restricting what constitutes a parody. The purportedly humorless Germans have done much better (official opinion auf deutsch(PDF), well-executed summary in English), primarily by avoiding the "target of" trap that Justice Souter fell into in 2Live Crew (and that has virtually no theoretical support in literary/arts scholarship) with the corollary that "satire" — if, that is, it is discernably different in principle — is not protected under Justice Souter's reasoning. Lurking behind this is a horrible mess arising from ex ante/ex post problems combined with serious retconning of "what did the artist intend?" that is even less amenable to judicial resolution than anything else in the arts... if that is possible. Regardless, the German approach is much closer to defensible.

And then there's the fashion industry. Leave aside its impulse to make me into its bloody billboard with obtrusive external branding (the label goes on the inside, thank you). Leave aside that so much of its output cannot be worn to actually do any work in (go ahead, Italian suit designers — wear a ventless jacket all day in court, with constant sit-stand-sit cycles and leaning and gesturing, and see if you don't pop a button). Forget the absence of pockets, usable forms of which are disappearing from men's clothing (look at polo-shirt selections of late) and never were in women's clothing. Just consider the selections available for women who aren't gymnasts or ballerinas (or, at minimum, don't play competitive tennis).

And then ponder the gender issues raised by the alleged proportion of gay men in the fashion industries combined with their treatment of real women. Or not, because by now your head probably hurts from trying to resolve the contradictions.

Last, and far from least, a pissed-off note on current efforts to "encourage" use of two-factor authentication. If it actually provided better security in practice, it might be a better choice than secure-username-and-strong-password systems; there's very little evidence that actual users make it more secure, though. But crippling the purported better security by directly linking it to, say, the inherently insecure (and easy to forge/intercept) cell phone system and number isn't just insane and stupid and counterproductive — it's a transparent effort to create a further profit center with the ability to sell cell-phone data on, or misuse it to direct advertising directly to customers. I do not and will not participate in that sort of silliness.

The Fine Print

Ritual disclaimer: This blog contains legal commentary, but it is only general commentary. It does not constitute legal advice for your situation. It does not create an attorney-client relationship or any other expectation of confidentiality, nor is it an offer of representation.

I approve of no advertising appearing on or through syndication for anything other than the syndication itself; any such advertising violates the limited reuse license implied by voluntarily including syndication code on this blawg, and I do not approve aggregators and syndicators whose page design reflects only an intent to use the reference(s) to this blawg without actually providing the content from this blawg.

Internet link sausages, as frequently appear here, are gathered from uninspected meaty internet products and byproducts via processes you really, really don't want to observe; spiced with my own secret, snarky, sarcastic blend; quite possibly extended with sawdust or other indigestibles; and stuffed into your monitor (instead of either real or artificial casings). They're sort of like "link salad" or "pot pourri" or "miscellaneous musings" (or, for that matter, "making law"), but far more disturbing.

I am not responsible for any changes to your lipid counts or blood pressure from consuming these sausages... nor for your monitor if you insist on covering them with mash or sauce.

Blog Archive

Warped Weft

Now live at the new site. I have arranged some of the more infamous threads that have appeared here by unravelling them from the blawg tapestry (and hopefully eliminating some of the sillier typos). Sometimes, the threads have been slightly reordered for clarity.

Other Blawgs, Blogs, and Journals

These may be of interest; I do not necessarily agree with opinions expressed in them, although the reasoning and writing are almost always first-rate (and represent a standard seldom, if ever, achieved in "mainstream" journalism). I'm picky, and have eclectic tastes, so don't expect a comprehensive listing.

How Appealing is aimed at appellate lawyers and legal news in general. If you care about the state of the law, start here — Howard's commentary is far better balanced, better informed, and better considered than any of the media outlets. To concentrate on the US Supreme Court, don't forget SCOTUSBlog.

Some academics' blawgs with a variety of political (and doctrinal) viewpoints:

The main European IP blawg of interest remains the UK-based IPKat, on a variety of intellectual property issues, with some overlap (with a less Eurocentric view) at IPFinance

The American Constitution Society blawg is a purportedly "liberal" counterweight to the so-called "Federalist Society" (which, despite its claims, should be called "Tory Society") that has yet to establish much coherence... but maybe that's all to the good.

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